Ip alert november 2008.indd

Jacqueline Criswell, Editor
(312) 627-4003

Wyeth’s ALAVERT and Walgreens’ WAL-VERT are chemically identical medications for allergy relief. In seeking trademark registration of the WAL-VERT mark, Walgreens selected the “VERT” element because potential purchasers were familiar with Wyeth’s successful product. Its packaging also includes the following statement: “Compare to ALAVERT active ingredient.” In upholding rejection of Walgreens’ application, the Trademark Panel found that there was a likelihood of confusion between the two marks, given that the products, the consumers and the channels of trade are identical. It chastised Walgreens for disregarding controlling law, pointing out that the cases it relied on primarily address trade dress infringement. The Panel recognized that Walgreens sells the product only in its own stores, side by side with ALAVERT and uses its house mark and company name repeatedly. However, the trademark application contained no such restrictions on sales. It found that in typical marketplace conditions, potential purchasers are likely to believe that the owner of the ALAVERT mark is associated with the WAL-VERT product in some fashion.
Walgreens recently fi led a complaint in Chicago Federal Court seeking review of the Panel’s denial of its trademark application. The complaint explains that Walgreens markets its own private label products to provide its customers with lower-priced alternatives, many of which include the distinctive WAL-prefi x, a shorthand reference to its house mark, such as WAL-PHED (Sudafed), WAL-TUSSIN (Robitussin) and WAL-ITIN (Claritin). It contends that consumers immediately understand that the WAL- prefi x indicates a lower priced alternative originating from Walgreens, especially since the products are displayed side by side This suit will be closely watched since its outcome could have far reaching consequences for large retailers with multiple Wyeth v. Walgreen Co., Opp. No. 91165912 (Aug. 5, 2008).
Walgreen Co. v. Wyeth, (N.D. Ill. Oct. 2008).
Contessa Premium Foods, which sells value added seafood meals and other frozen food products, sued Thai Union International, Empress International and Chicken of the Sea Frozen Foods (Thai Union), along with two former Contessa sales executives, for fraud and misappropriation of its valuable trade secrets. Thai Union, which owns the Chicken of the Sea tuna brand, launched Chicken of the Sea Frozen Foods in 2006. In 2005, it began interviewing several key Contessa sales executives, including Rosenberg and Beck, who worked for Contessa for many years. Both resigned in January, 2006 to become President and Vice President for Thai Union’s competing business. After a six-week trial, an L.A. jury found that Thai Union conspired with Rosenberg and Beck to misappropriate Contessa’s valuable trade secrets, defraud Contessa and take its existing and anticipated customers. It also found that Rosenberg and Beck breached their fi duciary duties with malice, oppression or fraud. Contessa was awarded $2.8 million in compensatory damages. The jury also awarded punitive damages against Thai Union for $1.5 million and against Rosenberg for $200,000. In addition, Contessa is entitled to recover its attorney Contessa Premium Foods, Inc. v. Thai Union International, Inc. et al. (Super. Ct. Cal.).
Tressler, Soderstrom, Maloney & Priess, LLP, Copyright 2008 HERSHEY ACCUSES FURNITURE COMPANY’S AD
Art Van Furniture recently launched a new interactive advertising campaign that uses ten eye-catching images on the side of its delivery trucks, including a chocolate-covered sofa partially wrapped like a Hershey Bar. In addition to using the image on its trucks, it also displayed this image on its website in connection with a contest for consumers to vote for their favorite truck art. Hershey fi led suit last week in Michigan Federal Court alleging trademark and trade dress infringement. It contends that its famous trade dress consists of the “immediately recognizable stylized lettering, design, brownish/maroon and silver color scheme” and overall commercial impression of its product. Hershey has moved for a TRO and permanent injunction.
The Hershey Co. v. Art Van Furniture, Inc., (E.D. Mich. Oct. 2008).
MKR owns the copyrights and trademarks in the 1979 movie Dawn of the Dead and its primary business is to monetize the value of those intellectual property assets. The movie’s success spawned an extensive licensing program, including action fi gures, t-shirts and Halloween costumes. Capcom is a developer of video games. In August, 2006, Capcom released a video game called Dead Rising for use on Xbox and applied to register the term as a trademark. Several years earlier, Capcom had contacted MKR about licensing elements from Dawn of the Dead for a video game but did not pursue it. Instead, when the video game was released, it contained a disclaimer reading: “THIS GAME WAS NOT DEVELOPED, APPROVED OR LICENSED BY THE OWNERS OR CREATORS OF GEORGE A. ROMERO’S DAWN In Dawn of the Dead, a plague reanimates the dead into fl esh eating zombies and threatens to destroy the country. After escaping from Philadelphia via helicopter, a pilot and his girlfriend land on top of a shopping mall and the main characters barricade the complex, kill the zombies inside and try to keep out others. In the Dead Rising video game, the player controls the main character, a journalist intent on photographing why the National Guard quarantined a fi ctional town in Colorado. He discovers the town is overrun with zombies and is dropped onto the roof of the town’s shopping mall via helicopter. The player must battle against zombies and other characters to search for the truth behind the town’s zombie infestation. MKR alleged that Capcom’s Dead Rising video game infringed both its trademark and copyrights. With respect to the copyright infringement claim, the Court applied the “extrinsic test” in evaluating the identifi able and protectable similarities between the plot, themes, dialog, mood, setting, pace, characters and sequence of events. Capcom argued that under the extrinsic test, Dead Rising and Dawn of the Dead are not substantially similar because these similarities are only superfi cial. The Court agreed, concluding that the similarities (the shopping mall setting, use of helicopters, zombies, the characters’ struggles with killing and avoiding zombies, etc.) constitute unprotectable elements. It also dismissed MKR’s trademark claims because Capcom’s disclaimer constituted fair use. Capcom Co., Ltd. v. The MKR Group, Inc., 2008 WL 4661479 (N.D. Cal.). Tressler, Soderstrom, Maloney & Priess, LLP If you have any questions concerning this alert or This advisory is for general information only and is not intended to TSM&P’s Intellectual Property Practice Group, please contact: provide, and should not be relied on for, legal advice in any particular circumstance or fact situation. The reader is advised to consult with an attorney to address any particular circumstance or fact situation. The opinions expressed in this advisory, if any, are those of the authors and not necessarily of Tressler, Soderstrom, Maloney & Priess, LLP or its clients.
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